THE UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 – AN OVERVIEW – PART II

[Mr. M. GOVINDARAJAN]

Terrorist Act

Section 15 of the Act defines the expression ‘terrorist act’ as whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--

• by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-

• death of, or injuries to, any person or persons; or
• loss of, or damage to, or destruction of, property; or
• disruption of any supplies or services essential to the life of the community in India or in any foreign country; or
• damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or
• damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

•  overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
• detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an international or inter-governmental organization or any other person to do or abstain from doing any act; or

commits a terrorist act.

 The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule as detailed below-

• Convention for the Suppression of Unlawful Seizure of Aircraft (1970);
• Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971);
• Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973);
• International Convention against the Taking of Hostages (1979);
• Convention on the Physical Protection of Nuclear Material (1980);
• Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1988);
• Convention for the Suppression of Unlawful Acts against the safety of Maritime Navigation (1988);
• Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf (1988); and
• International Convention for the Suppression of Terrorist Bombings (1997).

Public functionary

Explanation (a) to Section 15(1) defines the expression ‘public functionary’ as the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary.

High Quality Indian counterfeit currency

Explanation (b) to section 15(1) defines the expression ‘high quality Indian counterfeit currency’ as the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule as detailed below-

• water mark;
• latent image; and
• see through registration in the currency notes.

Terrorist organization

Section 2(1)(m) of the Act defines the expression ‘terrorist organization’ as an organization listed in the First Schedule or an organization operating under the same name as an organization so listed.  The following organizations are listed in the First Schedule as ‘terrorist organizations’-

1. BABBAR KHALSA INTERNATIONAL.
2. KHALISTAN COMMANDO FORCE.
3. KHALISTAN ZINDABAD FORCE.
4. INTERNATIONAL SIKH YOUTH FEDERATION.
5. LASHKAR-E-TAIBA/PASBAN-E-AHLE HADIS.
6. JAISH-E-MOHAMMED/TAHRIK-E-FURQAN.
7. HARKAT-UL-MUJAHIDEEN/HARKAT-UL-ANSAR/HARKAT-UL-JEHAD-E-ISLAMI.
8. HIZB-UL-MUJAHIDEEN/HIZB-UL-MUJAHIDEEN PIR PANJAL REGIMENT.
9. AL-UMAR-MUJAHIDEEN.
10. JAMMU AND KASHMIR ISLAMIC FRONT.
11. UNITED LIBERATION FRONT OF ASSAM (ULFA).
12. NATIONAL DEMOCRATIC FRONT OF BODOLAND (NDFB).
13. PEOPLE’S LIBERATION ARMY (PLA).
14. UNITED NATIONAL LIBERATION FRONT (UNLF).
15. PEOPLE’S REVOLUTIONARY PARTY OF KANGLEIPAK (PREPAK).
16. . KANGLEIPAK COMMUNIST PARTY (KCP).
17. KANGLEI YAOL KANBA LUP (KYKL).
18. MANIPUR PEOPLE’S LIBERATION FRONT (MPLF).
19. ALL TRIPURA TIGER FORCE.
20. NATIONAL LIBERATION FRONT OF TRIPURA.
21. LIBERATION TIGERS OF TAMIL EELAM (LTTE).
22. STUDENTS ISLAMIC MOVEMENT OF INDIA.
23. DEENDAR ANJUMAN.
24. COMMUNIST PARTY OF INDIA (MARXIST-LENINIST)-PEOPLE’S WAR, ALL ITS FORMATIONS AND FRONT ORGANISATIONS.
25. MAOIST COMMUNIST CENTRE (MCC), ALL ITS FORMATIONS AND FRONT ORGANISATIONS.
26. AL BADR.
27. JAMIAT-UL-MUJAHIDDEN.
28. AL-QAIDA.
29. DUKHTARAN-E-MILLAT (DEM).
30. TAMIL NADU LIBERATION ARMY (TNLA).
31. TAMIL NATIONAL RETRIEVAL TROOPS (TNRT).
32. AKHIL BHARAT NEPALI EKTA SAMAJ (ABNES).
33. Organizations listed in the Schedule to the U.N. Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007 made under section 2 of the United Nations (Security Council) Act, 1947 (43 of 1947) and amended from time to time.

The Central Government is having power to amend the first schedule; it can add an organization in the Schedule or remove an organization from the Schedule.

Proceeds of terrorism

Section 2(1)(g) of the Act defines the expression ‘proceeds of terrorism’ as-

• all kinds of properties which have been derived or obtained from commission of any terrorist act or have been acquired through funds traceable to a terrorist act, irrespective of person in whose name such proceeds are standing or in whose possession they are found; or
• any property which is being used, or is intended to be used, for a terrorist act or for the purpose of an individual terrorist or a terrorist gang or a terrorist organization.

All references to ‘proceeds of terrorism’ shall include any property intended to be used for terrorism.   No person shall hold or be in possession of any proceeds of terrorism.

Forfeiture of proceeds of terrorism

  Proceeds of terrorism, whether held by a terrorist organization or terrorist gang or by any other person and whether or not such terrorist or other person is prosecuted or convicted for any offence, shall be liable to be forfeited to the Central Government or the State Government.

The procedure involved in forfeiture of terrorism is as follows-

• The person holding or in possession of such proceeds is given a notice in writing informing him of the grounds on which it is proposed to forfeit the proceeds of terrorism.
• Such person will be given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of forfeiture.
• He will be also given a reasonable opportunity of being heard in the matter.
• No order of forfeiture shall be made if such person establishes that he is a bona fide transferee of such proceeds for value without knowing that they represent proceeds of terrorism.
• It shall be competent for the court to make an order in respect of property seized or attached,-

•  directing it to be sold if it is a perishable property and the provisions of section 459 of the Code shall, as nearly as may be practicable, apply to the net proceeds of such sale;
• nominating any officer of the Central Government or the State Government, in the case of any other property, to perform the function of the Administrator of such property subject to such conditions as may be specified by the court.

The order of forfeiture made by the court shall not prevent the infliction of any other punishment to which the person affected thereby is liable under this Act.

Appeal

 Any person aggrieved by an order of forfeiture may, within one month from the date of the receipt of such order, appeal to the High Court within whose jurisdiction, the court, which passed the order appealed against, is situated.

Return of property

Where an order for forfeiture is modified or annulled by the High Court or where in a prosecution instituted for any offence under Chapter IV or Chapter VI, the person against whom an order of forfeiture has been made is acquitted, such property shall be returned to him and in either case if it is not possible for any reason to return the forfeited property, such person shall be paid the price there for as if the property had been sold to the Central Government with reasonable interest calculated from the day of seizure of the property and such price shall be determined in the manner prescribed.

Claims by third party

Where any claim is preferred or any objection is made to the seizure or attachment of any property on the ground that such property is not liable to seizure or attachment, the Designated Authority before whom such property is produced, shall proceed to investigate the claim or objection.  No such investigation shall be made where the Designated Authority considers that the claim or objection is designed to cause unnecessary delay.   Where an appeal has been preferred and any claimant or objector establishes that the property specified in the notice is not liable to be forfeited under this Chapter, the said notice shall be withdrawn or modified accordingly.

Designated Authority

Section 2(1)(e) of the Act defines the expression ‘Designated Authority’ as  such officer of the Central Government not below the rank of Joint Secretary to that Government, or such officer of the State Government not below the rank of Secretary to that Government, as the case may be, as may be specified by the Central Government or the State Government, by notification published in the Official Gazette.

Search and seizure

If an officer investigating an offence committed under this Act, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, or where the investigation is conducted by an officer of the National Investigation Agency, with the prior approval of the Director General of National Investigation Agency, make an order seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned.

The investigating officer shall duly inform the Designated Authority within forty-eight hours of the seizure or attachment of such property.  The Designated Authority shall either confirm or revoke the order of seizure or attachment so issued within a period of sixty days from the date of such production.  An opportunity of making a representation by the person whose property is being seized or attached shall be given.

The officer investigating any offence under this Act, with the prior approval in writing of an officer not below the rank of a Superintendent of Police, may require any officer or authority of the Central Government or a State Government or a local authority or a bank, or a company, or a firm or any other institution, establishment, organization or any individual to furnish information in his or its possession in relation to such offence, on points or matters, where the investigating officer has reason to believe that such information will be useful for, or relevant to, the purposes of this Act.  The failure to furnish the information called for or deliberately furnishing false information shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

Any person aggrieved by an order made by the Designated Authority may prefer an appeal to the court, (a criminal court having jurisdiction, under the Code, to try offences under this Act ¹[and includes a Special Court constituted under section 11 or under section 22 of the National Investigation Agency Act, 2008) within a period of thirty days from the date of receipt of the order, and the court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property

Punishment

Whoever commits a terrorist act shall,--

• if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine;
• in any other case-
• whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organization or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act;
• whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act,
• whoever organizes or causes to be organized any camp or camps for imparting training in terrorism;
• whoever recruits or causes to be recruited any person or persons for commission of a terrorist act,
• whoever knowingly holds any property derived or obtained from commission of any terrorist act or acquired through the terrorist fund,

shall be punishable with imprisonment for a term which shall not be less than 5 years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for holding proceeds of terrorism

Whoever knowingly holds any property derived or obtained from commission of any terrorist act or acquired through the terrorist fund shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for being a member

Any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for threatening witnesses

Whoever threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines the witness, or any other person in whom the witness may be interested, or does any other unlawful act with intent to cause any of the said acts, shall be punishable with imprisonment which may extend to 3 years, and shall also be liable to fine.

Offences

Relating to membership

A person, who associates himself, or professes to be associated, with a terrorist organization with intention to further its activities, commits an offence relating to membership of a terrorist organization.  Where the person charged is able to prove-

• that the organization was not declared as a terrorist organization at the time when he became a member or began to profess to be a member; and
• that he has not taken part in the activities of the organization at any time during its inclusion in the ¹[First Schedule] as a terrorist organization,

such person shall not be treated as committing any offence under this Act.

Such person shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.

Support given to terrorist organization

A person commits the offence relating to support given to a terrorist organization,-

• who, with intention to further the activity of a terrorist organization,-

• invites support for the terrorist organization; and
• the support is not or is not restricted to provide money or other property within the meaning of section 40; or

•  who, with intention to further the activity of a terrorist organization, arranges, manages or assists in arranging or managing a meeting which he knows is-

• to support the terrorist organization; or
• to further the activity of the terrorist organization; or
• to be addressed by a person who associates or professes to be associated with the terrorist organization; or

• who, with intention to further the activity of a terrorist organization, addresses a meeting for the purpose of encouraging support for the terrorist organization or to further its activity.’

 A person, who commits the offence relating to support given to a terrorist organization shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both.

Raising fund for terrorist organization

A person commits the offence of raising fund for a terrorist organisation, who, with intention to further the activity of a terrorist organization,-

• invites another person to provide money or other property, and intends that it should be used, or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or
• receives money or other property, and intends that it should be used, or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or
•  provides money or other property, and knows, or has reasonable cause to suspect, that it would or might be used for the purposes of terrorism.

A person, who commits the offence of raising fund for a terrorist organization shall be punishable with imprisonment for a term not exceeding fourteen years, or with fine, or with both.

Cognizance of offences

No court shall take cognizance of any offence-

• Relating to unlawful activities association without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf;
• Relating to terrorist acts without the previous sanction of the Central Government or, as the case may be, the State Government, and if such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.

Denotification of terrorist organization or individual

An application may be made to the Central Government to remove   an organization from the First Schedule, or as the case may be, the name of an individual from the Fourth Schedule.   An application shall be addressed to the Secretary to the Government of India in the  Ministry of Home Affairs,  North Block, New Delhi and presented personally or forwarded to him by registered post with acknowledgement due.   The application shall set forth concisely the grounds for removal of the organization.  The application shall be considered and disposed of by the Central Government within a period of 45 days from the date of receipt of application.  If the Central Government is satisfied that the application filed is defective in any form, the Central Government shall, before rejecting such application, call upon the concerned organization or the persons, as the case may be, to remove the defect within a period of 30 days and if he or it does so,  the application shall be considered.